I realize that the events of the 9 Nov 2010 would seem to make this series moot, but it is useful in highlighting violations left unaddressed and the inaction on the part of Hayes Township with regard to the violations committed by Doug Longenecker.
There is very little in the Hayes Township Zoning Ordinance that addresses violations and penalties and consequences of violating the Ordinance and stays imposed by the Ordinance, and what there is consists of a lot of legalese and doublespeak. But I will try to muddle through this.
Today I will look at Pages 79-80, Article XVI Administration and Enforcement, Sections 1609-1612.
Page 79, Section 1609 Violations and Penalty, Paragraph 1. Violations: Use of land, buildings, structures and recreational vehicles in violation of any provision of this Ordinance are hereby declared to be a nuisance per se.
Doug Longenecker's violations of the Ordinance cited in the first two parts of this series of posts are, each individual occurrence, a nuisance per se. The ongoing development of the Gamble-Longenecker property on Mostetler Road was an ongoing nuisance per se by virtue of the fact that it violated the stay on the property that was put in place when the first appeal was filed to the Zoning Board of Appeals. The violation of the stay was a violation of a provision of the Ordinance. In addition to those violations, the Polaris WOTT event that was held on 30 Aug 2010 was a violation of the stay on the property and was declared so by Judge Mienk at the 20 Oct 2010 court date. The Polaris Event was a nuisance per se.
Page 79, Section 1609, Violations and Penalty, Paragraph 2. Penalties: "Any person, corporation or firm who violates, disobeys, omits, neglects or refuses to comply with any provisions of this Ordinance or any permit, license or exception granted hereunder, or any lawful order of the Township Zoning Administrator, Zoning Board of Appeals, Planning Commission or the Township Board issued in pursuance of this Ordinance shall be guilty of a misdemeanor."
Doug Longenecker has violated, disobeyed or refused to comply with the restrictions placed upon him by the Special Use granted to him by the Planning Commission by deviating from his site plan (setting aside and working on a BMX area) without prior approval of the Hayes Township Zoning Administrator (then Jim VanWormer). He is guilty of a misdemeanor.
Any person who worked on the BMX area on the Gamble-Longenecker property on Mostetler Road is also guilty of a misdemeanor under this section of the Hayes Township Zoning Ordinance.
Doug Longenecker has violated a provision of the Ordinance in that he violated the stay that went on the Gamble-Longenecker property when the first appeal was filed with the Zoning Board of Appeals. He continued to develop the Gamble-Longenecker property on Mostetler Road after the stay went on the property. He is guilty of a misdemeanor.
Any person who helped with the development of Michigan Moto Mania on the Gamble-Longenecker property on Mostetler Road (picking up sticks and rocks, running bulldozers and other such equipment, etc.) while the stay was in force is also guilty of a misdemeanor.
Doug Longenecker has violated the stay that was in force on the Gamble-Longenecker property when he scheduled and allowed the Polaris WOTT event on the property on 30 Aug 2010. He is guilty of a misdemeanor.
Polaris is a corporation that violated the stay that was in force on the Gamble-Longenecker property on Mostetler Road when they sponsored the Polaris WOTT event on the property on 30 Aug 2010. Polaris is guilty of a misdemeanor.
Planning Commission members Ron Malone and Don Atkinson have violated the stay that was in force on the Gamble-Longenecker property on Mostetler Road when they participated in the Polaris WOTT event on the property. They are guilty of a misdemeanor. (In my opinion, that is grounds for their removal from the Planning Commission as well. The violation was willful.)
Any individual who participated in the Polaris WOTT event violated the stay that was in force on the Gamble-Longenecker property on Mostetler Road when they participated in the event. They are guilty of a misdemeanor.
"Upon conviction thereof, before any court having jurisdiction , he or she shall be punishable by a fine not to exceed five hundred (500) dollars or by imprisonment not to exceed ninety (90) days, or both, at the discretion of the court."
Judge Mienk has already determined that the Polaris WOTT event was a violation of the stay that was in force on the Gamble-Longenecker property on Mostetler Road. It is fortunate for Doug, Polaris, Don Atkinson, Ron Malone and everyone else who participated that none of them were on trial for the misdemeanor they all committed. The Hayes Township coffers would be about $15,000. richer from that day alone.
As for the other violations, they could have been expensive for everyone who violated the stay as well. I guess it's a good thing that Hayes Township does not enforce violations of the Zoning Odinance, or everyone's wallet would be a whole lot lighter.
"Each day during which a violation continues shall be deemed a separate offense."
Wow! Wouldn't that be a hefty payday for Hayes Township at Doug's expense!
$500. for the deviation of the site plan.
$500. X (let's be stingy and say only a week of violations working on the BMX area.) 7 = $3500.
$500. X a single week of continued development during the stay = $3500.
$500. for Polaris WOTT event
That's just a drop in the bucket of what it could potentially be $8000. and probably more like $7500./week - and that's just Doug alone.
Shall I figure out the potential jail time? That's
90 days + 490 days +490 days +90 days = 1160 days, or just short of 3 years and 2 months.
It's a good thing Hayes Township is so forgiving.
"The imposition of any sentence shall not exempt and offender for noncompliance with the provisions of this Ordinance. The foregoing penalties shall (will) not prohibit the Township from seeking injunctive relief against a violator or such other appropriate relief as may be provided by law."
Pages 79-80, Section 1610 Public Nuisance Per Se: "Any material violation of this Ordinance is considered a public nuisance per se. Any building or structure which is erected, altered, or converted, or any use of premises or land which is begun or changed subsequent to the time of passage of this chapter and in violation of any of the provisions of this chapter, is hereby declared to be a public nuisance per se, and may be abated by order of any court of competent jurisdiction."
Doug Longenecker's violations of the Ordinance cited in the first two parts of this series of posts are, each invidual occurrence, a nuisance per se. The ongoing development of the Gamble-Longenecker property on Mostetler Road was an ongoing nuisance per se by virtue of the fact that it violated the stay on the property that was put in place when the first appeal was filed to the Zoning Board of Appeals. The violation of the stay was a violation of a provision of the Ordinance. In addition to those violations, the Polaris event that was held on 30 Aug 2010 was a violation of the stay on the property and was declared so by Judge Mienk at the 20 Oct 2010 court date. The Polaris Event was a nuisance per se.
If the Township fails to take measures to deal with these nuisances per se, they can be dealt with in court. If I am not mistaken, Judge Mienk indicated that there were supposed to be consequences of the nuisances per se that have already taken place.
The Zoning Board Of Appeals has overturned the Special Use, but that is separate from the consequences attached to the nuisance per se infractions. Those have yet to be dealt with by the Township. There should be no chance of any resurrection of Michigan Moto Mania. If the Township does not take care of it, perhaps Judge Mienk will.
Section 1611 Fines and Imprisonment, Paragraph 1: "The owner of any building, structure or premises, or part thereof, where any condition in violation of this chapter shall exist or shall be created and who has assisted knowingly in the commission of such violation shall be guilty of a separate offense and, upon conviction, shall be liable to the fines and imprisonment as established by this Township Ordinance and enforced by the courts of law."
Don Atkinson and Ron Malone knowingly assisted Doug Longenecker in the commission of the violation of the stay on the Gamble-Longenecker property when they participated in the Polaris WOTT event. As a minimum, they are both guilty of misconduct while in office, and they deserve to be fired from the Planning Commission, but if this case is ultimately heard by Judge Mienk, they could be held liable to the fines and imprisonment as established by the Hayes Township Zoning Ordinance. That could potentially be either $500. or 90 days each.
Paragraph 2: "A separate offense shall be deemed committed upon each day during or when a violation occurs or continues."
The Polaris trucks were at the Gamble-Longenecker property on Mostetler Road for 2 days.
Section 1612 Rights and Remedies are Cumulative: "The rights and remedies provided in this article are cumulative and in addition to any other remedies provided by law."
I have no comment to add to this point.
Summary:
No one reading this seriously expects that Hayes Township will, all of a sudden, start enforcing their own ordinance for all of the violations committed by Doug Longenecker, the Moto Mania supporters who have participated in the violations or the various members of boards named or unnamed who have committed single or ongoing violations of the Zoning Ordinance. They have not done so up to this point, I have no reason to believe that they will start any time soon. For that, all of the offenders should be thankful. They are all in contempt of the Ordinance, and some of the violations have been blatant.
There are no real consequences for violating a stay in Hayes Township, and the Zoning Ordinance unenforced is not worth the paper it is printed on.
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